Trajkoski v The Queen
[2000] WASC 40
•24 FEBRUARY 2000
TRAJKOSKI -v- R [2000] WASC 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 40 | |
| Case No: | MCS:18/2000 | 17 FEBRUARY 2000 | |
| Coram: | SCOTT J | 24/02/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | TONI TRAJKOSKI THE QUEEN |
Catchwords: | Bail application Previous bail application refused No changed circumstances Presumption of innocence not applicable subsequent to conviction by plea of guilty Multiple offences committed whilst on bail Serious prior convictions Potential danger to community if bail granted All factors taken into account |
Legislation: | Bail Act 1982, Sch 1 Pt B Clause 4, Sch 1 Part C cl 1(a), Sch 1 Part C cl 1(a)(iii) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail application - Previous bail application refused - No changed circumstances - Presumption of innocence not applicable subsequent to conviction by plea of guilty - Multiple offences committed whilst on bail - Serious prior convictions - Potential danger to community if bail granted - All factors taken into account
Legislation:
Bail Act 1982, Sch 1 Pt B Clause 4, Sch 1 Part C cl 1(a), Sch 1 Part C cl 1(a)(iii)
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr M R Gunning
Respondent : Mr G Mignacca-Randazzo
Solicitors:
Applicant : Gunning
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 SCOTT J: The applicant applied for bail in relation to a number of charges shown on the schedule attached to this judgment: Charge Nos 26905/98, 26906/98, 28511/99, 35262/99, 35263/99, 35264/99, 41415/99, 41416/99, 41417/99, 41418/99, 41419/99 and 41420/99.
2 The applicant had made a previous application for bail on the same matters in the Supreme Court. That application was heard by Heenan J on 12 November 1999 and bail was refused. On that occasion, Heenan J delivered reasons extempore in which he said:
"Now, in light of your record, looking at things objectively, letting you loose on the community is quite a risk. Even if you don't have a firearm, the prospect of you taking drugs again and doing anything while you're under the influence of drugs ---."
3 His Honour was interrupted by the applicant, who was appearing in person.
4 Heenan J went on to say:
"It seems to me that it would be quite wrong on the information before me at the moment to release you on bail. It's not a matter of you having a record that has stopped in March 1996. You have been charged since then with a large number of offences not only in September this year but going back to last year. The chances of you being convicted of at least some of them are overwhelming and it's very likely that once convicted you will be sent to prison again for a considerable period of time.
It seems to me that it is important for you to decide what you're going to do about these charges quickly. If you're going to plead guilty to some of them it's important to get them out of the way and it's important then if you are not going to plead guilty to the others to find out when they are going to be heard. It might be that when the situation is clarified that you have some argument for bail but you haven't at the moment. There are just too many charges hanging over you and the prospects are too uncertain.
It seems to me that it would be quite wrong in these circumstances to release you on bail. I suggest that you do what you can to get legal aid, pursue it as far as you can."
(Page 4)
5 The various charges faced by the applicant at the time of the hearing before Heenan J appear on the schedule attached to this judgment. In all, those charges totalled 31.
6 Subsequent to the hearing before Heenan J, the applicant pleaded guilty on 16 December 1999 to the charges as shown at the end of the schedule. Those charges were heard in the District Court and the applicant was sentenced to a total of 12 months' imprisonment backdated to 9 September 1999. The applicant was granted a parole order.
7 Because the applicant was granted a parole order at the completion of 1/3 of that sentence, he became eligible for parole on 8 January 2000.
8 In relation to the indictable offences, I am advised by counsel that those matters are listed for trial in the District Court on 27 March 2000. Those charges, indicated on the schedule as Indictment No 151 of 99 are allegations of possession of heroin and possession of amphetamine, each with intent to sell or supply and they are of course, serious charges. In addition, the applicant has a trial date fixed for 5 April 2000 in relation to a charge of possession of heroin with intent to sell or supply to another.
9 The applicant having pleaded guilty to the charges before Heenan J must now demonstrate some changed circumstances before the question of bail can be reconsidered: see Schedule 1, Part B, Clause 4 of the Bail Act 1982. In that respect, counsel for the applicant argues that in this case the changed circumstances come about because the applicant, having served four months in custody since he was sentenced in the District Court, has reformed his ways and resolved to live a law-abiding life. It is argued that the applicant, having spent that period in custody, is now fit to be released on bail.
10 I am not persuaded that this argument has merit. When the applicant came before Heenan J, the presumption of innocence ran with him in the sense that he was not a person convicted of any criminal offence. Upon his conviction in the District Court, the presumption of innocence no longer applies. In addition, the applicant has requested that 11 charges be dealt with in the District Court following his trial on 27 March 2000. Whilst those charges are Petty Sessional matters, they are serious matters which may in due course attract custodial terms.
11 It is also of some significance that as the applicant is going to trial in the District Court, there is a possibility he may be convicted of either the offences charged in the indictment, or some lesser offence.
(Page 5)
12 It is also to be noted that the applicant has serious prior convictions, particularly in the Supreme Court on 29 July 1994, when he was convicted of robbery whilst armed and in company. This was a violence offence. He also has a conviction for disabling to commit an indictable violence offence. The applicant was sentenced to a total of 5 years' and 6 months' imprisonment for these offences and was made eligible for parole. On that occasion, the applicant successfully completed the parole term. The present charges, however, reflect that whilst the applicant may have refrained from committing criminal offences whilst he was on parole, the same cannot be said of the situation since he completed that parole term.
13 I accept what counsel for the applicant has said in relation to the applicant having been granted bail in relation to the serious charges which he now faces. The matters upon which he was not granted bail are matters before the Court of Petty Sessions rather than on indictment. Nonetheless, both the charges themselves and the applicant's prior history need to be looked at globally and in context. The applicant faces two trials in the District Court and many Petty Sessional charges, as revealed in the attached schedule.
14 When considering bail, the court needs to look to the matters referred to in Part C of Schedule 1 of the Bail Act 1982, and particularly the considerations contained in cl 1(a). In this case, the court needs to consider whether the applicant would commit any further offences, or be likely to endanger the safety, welfare, or property of any person. They are the two areas of significance in relation to the present bail application.
15 As to the first of those factors, it is of significance that the applicant committed two groups of offences whilst he was already on bail in relation to the matters now listed for hearing in the District Court on 27 March 2000. It is said by his counsel that these offences were committed because of his drug addiction and the need to commit offences in order to service that addiction. Nonetheless, whether that is so or not, it is clear that the applicant continued to commit offences whilst on bail and to a considerable extent. No doubt that is why Heenan J came to the conclusion that the applicant was likely to continue to commit offences if he was granted further bail.
16 In addition, the applicant, whilst on bail, continued to maintain his involvement with drugs. In terms of endangering the safety, welfare, or property of any person in terms of cl 1(a)(iii) of Part C of Schedule 1 of
(Page 6)
- the Bail Act 1982, there is a distinct possibility that others may be endangered by the applicant's conduct.
17 It is important to add, in my opinion, that the applicant has failed to demonstrate any changed circumstances in his favour. Whilst the presumption of innocence ran with him when the application was made before Heenan J, that is not so now, as has been convicted, on his own plea, of the offences referred to earlier in these reasons as shown on the schedule attached hereto. The presumption of innocence, therefore, no longer runs with him. I would add that whilst counsel made clear that the applicant became eligible for parole on 8 January 2000, there is no certainty that parole would have been granted. I accept, however, the proposition advanced by counsel for the applicant that his client is in a "no win" situation in that the Parole Board will not grant parole whilst the applicant is facing other charges and is not on bail on those charges. It would become intolerable if bail was refused on the basis that the applicant was not eligible to take up that bail because parole had not been granted. The applicant in that situation would be in a truly "no win" situation.
18 Taking all of these matters into account, I am far from persuaded that bail is appropriate, particularly bearing in mind that the applicant faces trial in the District Court on 27 March and on 5 April of this year.
19 I would add that I have taken into account the factors put forward as personal to the applicant, including the fact that he has a 10-month-old daughter and employment available to him, however I am not persuaded that this is an appropriate case for bail.
20 It may be that after the District Court charges are resolved, if the applicant is acquitted of those charges and if all that remains are the outstanding charges in the Court of Petty Session, then the question of bail can be revisited. In the meantime, however, in my view, there is nothing about the applicant's present circumstances that constitute either changed circumstances from those that were before Heenan J, or which would otherwise justify the granting of bail to him.
21 The application is dismissed.
(Page 7)
SCHEDULE
| DATE | CHARGE NO | PLACE | OFFENCE | STAGE OF PROCEEDINGS |
| 23/10/97 | 39371/98 | REDCLIFFE | FRAUD | SECTION 32 NOTICE FOR MARCH |
| 25/10/97 | 39372/98 | OSBORNE PARK | FRAUD | SECTION 32 NOTICE FOR MARCH |
| 27/05/98 | INS 151/99 | NORTHBRIDGE | COUNT 1 POSSESSION WITH INTENT TO SELL OR SUPPLY (HEROIN) COUNT 2 POSSESSION WITH INTENT TO SELL OR SUPPLY (METHYLAMPHETAMINE) COUNT 3 POSSESSION WITH INTENT TO SELL OR SUPPLY (MDMA) | TRIAL 27/03/00 DISTRICT COURT |
| 03/06/98 | 26905/98 | PERTH | POSSESSION OF PROHIBITED DRUG (HEROIN) | REMANDED IN CUSTODY 05/04/00 PENDING IN THE COURT OF PETTY SESSIONS |
| 03/06/98 | 26906/98 | PERTH | POSSESSION OF PROHIBITED DRUG (AMPHETAMINE) | REMANDED IN CUSTODY 05/04/00 PENDING IN THE COURT OF PETTY SESSIONS |
| 24/07/98 | 34893/98 | BAYSWATER | STEALING | SECTION 32 NOTICE FOR MARCH |
| 24/07/98 | 34894/98 | MORLEY | FORGERY | SECTION 32 NOTICE FOR MARCH |
| 24/07/98 | 34895/98 | MORLEY | UTTERING | SECTION 32 NOTICE FOR MARCH |
(Page 8)
| 30/07/98 | 34887/98 | MARANGAROO | POSSESSION OF PROHIBITED DRUG (CANNABIS) | SECTION 32 NOTICE FOR MARCH |
| 30/07/98 | 34888/98 | MARANGAROO | POSSESSION OF FIREARM .22 CALIBRE | SECTION 32 NOTICE FOR MARCH |
| 30/07/98 | 34889/98 | MARANGAROO | POSSESSION OF AMMUNITION | SECTION 32 NOTICE FOR MARCH |
| 30/07/98 | 34890/98 | MARANGAROO | UNLAWFULLY OBTAINED GOODS | SECTION 32 NOTICE FOR MARCH |
| 30/07/98 | 34891/98 | MARANGAROO | UNLAWFULLY OBTAINED GOODS | SECTION 32 NOTICE FOR MARCH |
| 30/07/98 | 34892/98 | MARANGAROO | POSSESSION OF HOUSEBREAKING IMPLEMENT | SECTION 32 NOTICE FOR MARCH |
| 03/09/98 | 28511/99 | MARANGAROO | STEALING | REMANDED IN CUSTODY 5/04/00 PENDING IN COURT OF PETTY SESSIONS |
| 06/10/98 | 4139 /99 | MARANGAROO | POSSESSION OF PROHIBITED DRUG (CANNABIS) | FINE $250 |
| 16/06/99 | 41415/99 | LEEDERVILLE | SPEEDING | JOINED AS COMPLAINT 41415/99 REMANDED IN CUSTODY 05/04/00 PENDING IN COURT OF PETTY SESSIONS |
| 16/06/99 | 41416/99 | LEEDERVILLE | MISLEADING POLICE | JOINED AS COMPLAINT 41415/99 REMANDED IN CUSTODY 05/04/00 PENDING IN COURT OF PETTY SESSIONS |
| 16/06/99 | 41417/99 | LEEDERVILLE | NO MOTOR DRIVER'S LICENCE | JOINED AS COMPLAINT 41415/99 REMANDED IN CUSTODY 05/04/00 PENDING IN COURT OF PETTY SESSIONS |
| 08/08/99 | 41418/99 | TUART HILL | SPEEDING | JOINED AS COMPLAINT 41415/99 REMANDED IN CUSTODY 05/04/00 PENDING IN COURT OF PETTY SESSIONS |
(Page 9)
| 08/08/99 | 41419/99 | TUART HILL | MISLEADING POLICE | JOINED AS COMPLAINT 41415/99 REMANDED IN CUSTODY 05/04/00 PENDING IN COURT OF PETTY SESSIONS |
| 08/08/99 | 41420/99 | TUART HILL | NO MOTOR DRIVERS LICENCE | JOINED AS COMPLAINT 41415/99 REMANDED IN CUSTODY 05/04/00 PENDING IN COURT OF PETTY SESSIONS |
| 27/08/99 | 35261/99 | MARANGAROO | POSSESSION WITH INTENT TO SELL/SUPPLY (HEROIN) | TRIAL ON 05/04/00 DISTRICT COURT |
| 27/08/99 | 35262/99 | MARANGAROO | POSSESSION OF FIREARM .45 CALIBRE PISTOL | REMANDED IN CUSTODY O5/04/00 PENDING IN THE COURT OF PETTY SESSIONS |
| 27/08/99 | 35263/99 | MARANGAROO | POSSESSION OF AMMUNITION | REMANDED IN CUSTODY O5/04/00 PENDING IN THE COURT OF PETTY SESSIONS |
| 27/08/99 | 35264/99 | MARANGAROO | NO MDL FOR THAT CLASS OF VEHICLE | REMANDED IN CUSTODY O5/04/00 PENDING IN THE COURT OF PETTY SESSION |
| 08/09/99 | 36564/99 | NORTHBRIDGE | POSSESSION OF PROHIBITED DRUG (AMPHETAMINE) | PLEADED GUILTY 16/12/99 12 MONTHS' IMPRISONMENT |
| 06/09/99 | 36565/99 | MALAGA | POSSESSION OF PROHIBITED DRUG (CANNABIS) | PLEADED GUILTY 16/12/99 12 MONTHS' IMPRISONMENT |
| 06/09/99 | 36566/99 | MALAGA | POSSESSION OF FIREARM .45 CALIBRE PISTOL | PLEADED GUILTY 16/12/99 12 MONTHS' IMPRISONMENT |
(Page 10)
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